Date: 20000404
Docket: IMM-2250-99
BETWEEN:
JIANGTAO HUANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of Mary Coulter, Vice-Consul, Immigration at the Canadian Consulate General"s office in Hong Kong (the "Visa Officer"), dated March 24, 1999, refusing the applicant"s application for permanent residence in Canada.
[2] The applicant is a 37-year old national of the People"s Republic of China (PRC). She is married and has a daughter born in 1988.
[3] On January 27, 1997, the applicant submitted to the Canadian Consulate General in Hong Kong an application for permanent residence in Canada. The applicant applied under the assisted relative category based on an approved family business job offer. She requested that she be assessed as a Service Representative (CCDO 4192-114). The applicant"s husband and daughter were included as the applicant"s dependents.
[4] The applicant"s sister, Bonnie Wong, a permanent residence of Canada since May 1995, operates an adoption consulting business called Tribo Services Inc. which facilitates and coordinates the adoption of children from China by Canadian families.
[5] Educated and trained as a pediatrician,1 the applicant began working part-time for her sister"s company in January 1994. Her role was to contact local orphanages and local adoption agencies and to visit and examine candidates for adoption. She also attended many administrative matters with respect to the adoption process, including making flight arrangements, setting interview appointments with various Chinese adoption authorities and facilitating the client-agency interviews.
[6] The position of the job offered to the applicant is described as "China Affairs Coordinator" which requires the applicant to travel to China to help clients complete the adoption, to be a guide, interpreter and translator for clients, to assist in liaison with the Chinese orphanage or adoption authorities, and to assist in maintaining close relationship with Chinese officials.
[7] On February 12, 1999, the applicant was interviewed by the visa officer with the assistance of a Cantonese speaking interpreter. There was some uncertainty as to which occupation the visa officer should use to assess the applicant. At the conclusion of the interview, the visa officer indicated that she would reserve her decision in order to determine the appropriate occupation under which to assess the applicant.
[8] After the interview, the visa officer received a letter dated February 16,1999 from the applicant"s sister, Bonnie Wong, who requested that the applicant be assessed as an administrative officer/liaison officer under NOC 1211.0.
[9] On or about April 2, 1999, the applicant received a letter dated March 24, 1999 from the visa officer indicating that the applicant"s application for permanent residence to Canada was refused.
[10] The applicant sought to be assessed under the occupation Administrative Officer (NOC 1221.0). As such, the applicant was awarded 62 units of assessment.
[11] Given that in order to be selected as an assisted relative, an applicant must earn 65 units, the visa officer determined that the applicant failed to obtain the minimum points required.
[12] The visa officer also assessed the applicant under the Canadian Classification and Dictionary of Occupations (CCDO)2 and determined that the applicant"s training did not meet the requirements of Administrative Officer, which are over two years up to and including four years of specific vocational preparation. As a result, the visa officer refused the applicant"s application for permanent residence.
[13] The applicant submits that the visa officer erred in law or made a capricious finding of fact when she determined that the applicant failed to meet the specific vocational preparation (SVP) for the occupation of administrative officer. He further submits that she made a perverse finding of fact when she determined that the applicant"s unit of assessment awarded are an accurate reflection of her ability to becoming successfully established in Canada.
ANALYSIS
| A) Assessment as Administrative Officer |
[14] The visa officer reviewed the employment requirements of administrative officer under NOC 1221.0 and determined that the applicant met the NOC requirements, thus awarding her 7 units of assessment under the education/training3 factor. The visa officer was also satisfied that the applicant has in her work experience and aptitudes sufficient abilities to indicate that she could successfully fill the position as approved under the family business job offer.4
[15] Given that the applicant had approximately two years of experience with her part-time work outside normal working hours, the visa officer awarded 4 units of assessment for her experience.5 Notwithstanding these findings, the visa officer determined that the applicant would not receive sufficient points to qualify in the intended occupation of administrative officer under the NOC system.
[16] As a result, the visa officer assessed the applicant under the CCDO system6 where she determined that the applicant failed to meet the training/entry requirements under the CCDO system since she did not have over two years and up to fours years of specific vocational preparation.
[17] Under the occupation administrative officer (CCDO-1179-182) the minimum specific vocation preparation requirement is 7 units,7 which means that the applicant must have over two years and up to and including 4 years of specific vocational training.
[18] The specific vocational preparation factor is measured by the amount of formal professional, vocational, apprenticeship, in-plant, or on-the-job training specified in the CCDO as necessary to acquire the information, techniques and skills required for average performance in the occupation in which the applicant is assessed.8
[19] In the case at bar, counsel for the applicant submits that the visa officer had to assess the applicant on the basis of all the criteria under the SVP factor.
[20] A review of the evidence indicates that the applicant has been working for her sister"s company "on a casual basis" since January 1994.9 During the interview the applicant informed the visa officer that she had worked part-time on the weekends and in the evenings for her sister"s company.10
[21] Therefore, based on the lack of evidence provided indicating that the applicant had indeed worked an equivalent of over two years of full-time, on-the-job training as an administrative officer or that her duties and experience as a pediatrician were relevant to the occupation of an administrative officer, the visa officer determined that the applicant did not meet the specific vocational preparation requirements under the CCDO system.
[22] I am satisfied that the visa officer"s determination that the applicant did not meet the specific vocational preparation requirements of an administrative officer under the CCDO system was reasonable and made with regard to relevant considerations.
| B) Applicant"s ability to becoming successfully established in Canada |
[23] Counsel for the applicant submits that the visa officer assessed the applicant pursuant to her discretionary powers under subsection 11(3) of the Regulations and as a result made a perverse finding of fact when she refused the applicant"s application despite her findings that the applicant "has in her work experience and aptitudes suffficient [sic] abilities to indicate that she could successfully fill the position as approved".11
[24] As noted in Lam v. Canada (MCI)12 by Justice Rothstein, there is no obligation on the visa officer to exercise his discretion under the subsection 11(3) of the Regulations:
| Where an applicant has reason to believe that he or she may be successfully established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under s. 11(3) setting forth relevant reasons. [...] there is no obligation on the visa officer to exercise a discretion under s. 11(3).13 |
[25] Certainly, a visa officer may on his or her own motion proceed with an assessment under subsection 11(3) of the Regulations. However, if this were the case, I am of the opinion that given the exceptional nature of this provision, that the visa officer would have made it quite clear if she were proceeding as such. There was no indication in the refusal letter nor the visa officer"s CAIPS notes that she had decided to assess the applicant under subsection 11(3).
[26] In fact, the visa officer refused the applicant"s application since she determined that the applicant did not obtain the required units of assessment. The comments in her CAIPS notes which indicate that she is satisfied that the applicant has "in her work experience sufficient abilities to successfully fill the position", refers to her assessment of the experience factor under the occupation administration officer (NOC), and does not refer to the visa officer"s assessment of the applicant"s ability to successfully establish herself in Canada under subsection 11(3) of the Regulations, as submitted by counsel for the applicant.
[27] Further, I am of the view that the visa officer properly assessed the applicant under the personal suitability factor based on the criteria defined in Schedule I of the Regulations.
[28] Therefore, based on the evidence in the record, I am of the opinion that the visa officer did not make a perverse finding of fact.
[29] For the foregoing reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 4, 2000.
__________________
1 After 5 years of studies at the Zhanjiang Medical College in Guangdong, the applicant graduated with a Bachelor of Medicine degree. She worked as a pediatrician from 1983 until 1989 when she commenced a one year post graduate program in paediatrics. In October 1990 the applicant resumed her paediatric work at the Zhanjiang Hospital where she was promoted to chief pediatrician in 1991.
2 As provided by section 2.03(1) of the transitional provisions of the Immigration Regulations, 1978, SOR/78-102, as am., the applicant was entitled to have her application assessed on the basis of the factors set out in Schedule I of the Immigration Regulations as it read prior to May, 1, 1997 (the CCDO classification system) as well as on the basis of the post-May 1,1997 NOC classification system.
3 Letter from Mary Coulter, Applicant"s Application Record at page 4.
4 Visa Officer"s Computer Assisted Immigration Processing System (CAIPS), Certified Tribunal Record at page 6.
5 Ibid.
6 In compliance with s.2.03(1) of the transitional provisions of the Immigration Regulations, 1978.
7 See description of occupation of Administrative Officer under the CCDO system, Applicant"s Application Record at pages 21-22.
8 Schedule I of the Regulations, pre-May 1, 1997, Applicant"s Application Record at page 35.
9 Reference Letter, Certified Tribunal Record at page 28.
10 CAIPS notes, Certified Tribunal Record at page 5.
11 CAIPS notes, Certified Tribunal Record at page 6.
12 (1998), 152 F.T.R. 316 (F.C.T.D.).
13 Ibid. at page 318.
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